Wikipedia:Requests for comment/Spongebob Squarepants is now freely licensed!

Gee Spongebob, tell me more.

Wait, really?

Well.. At least Commons seems to think so. Sites like Flickr and YouTube allow their users to set the license for their uploads, offering the option to release one's content with a free license. Which is really awesome! I use it myself. (but I do it on purpose)

Look Squidward, I'm freely licensed!

For some reason, several major entertainment companies are also doing this or used to. For example Nickelodeon, Ubisoft, Bandai Namco, Disney (to be precise, DisneyChannelIsrael) and Microsoft. For short clips of live action series this could be defensible: creating a spin-off from live action footage would be difficult and it doesn't print well on mugs and t-shirts. And a free license might encourage people to make memes using screenshots of that, which is free publicity. But according to at least three Wikimedia Commons administrators (one of them is a crat and CU even!) I can make my own Spongebob webcomic spinoff! (title idea: "Squidward motorboats Bikini Top") I can start selling t-shirts and lunchboxes with Spongebob Squarepants and Squidward now! (as long as I provide attribution. I'll print that on the bottom of the lunchbox) Imma be RICH!!

Shall we get back to earth now? In videos that include non-live action characters from companies whose business model is to sell licenses, that CC-BY license is an accident. Why these clips are freely licensed? Maybe some SEO idiot determined it makes the YouTube algorithm 0.1% happier. Maybe an intern thought that any creative work needs to be marked as "creative commons". Maybe it's a bug in some upload script. Who cares?

Here are the important questions:
1. Is this license enforceable? If I do start selling Spongebob-branded lunchboxes and scuba gear, will this license hold up in court? My best guess? Yes and no, because it'll never go to trial. Nickelodeon would start with a simple cease and desist. If I'd ignore that, they would make me settle, no matter the cost. It's irrelevant how solid of a case they might be able to build - even a 1% chance they would lose would be FAR to costly. They would rather give me a free license to sell my lunchboxes and a million dollars cash to sweeten the deal. Nobody wants that to go to trial. Literally nobody, because it would be bad for free culture as well. If Nickelodeon wins, it may undermine the validity of Creative Commons licenses. If Nickelodeon loses, the stock price for at least Nickelodeon and Disney will take a nosedive and the headlines will read "Wikipedia stole Spongebob". Does that sound like good publicity? Even the monkey selfie had some negative impact in that regard, but in that case the precedent it would've set otherwise was an unacceptable risk. Now imagine the negative impact of the monkey selfie, times a billion.

2. Do these files endanger our re-users? Well, yeah, I think they do..

If Commons is declaring Spongebob to be freely licensed and two clicks away from declaring a few dozen Disney characters to be freely licensed (Big Hero 6, Ducktales 2017, Star vs. the Forces of Evil, Mickey Mouse and Donald Duck, Milo Murphy's Law).. We can't tell Commons what to do. "Freely licensed" images of characters that are owned by multinationals based solely on the license setting on Flickr or YouTube is silly. It might be up to us to not allow them to be embedded here to protect re-users. How we would technically achieve that, or how we would word such policy? I don't know yet. Or we need to find another solution.

Or we go to war with with Disney and Nickelodeon.

• Wikipedia:Administrators' noticeboard/Incidents#User:Yann
• c:Commons:Village pump/Copyright#CC-BY license on YouTube videos by Disney Channel Israel
• c:Commons:Deletion requests/Files in Category:Hogwarts Legacy
• c:Commons:Undeletion requests/Archive/2023-10#A few files from CC-licensed Nickelodeon videos
• c:Commons:Deletion requests/Files found with "Disney Channel Canada" (old discussion I may have borrowed some arguments from..)
• Commons:Undeletion requests/Current requests (revision 824251709)
• Commons:Undeletion requests/Current requests (revision 824251709)
• c:Commons:Deletion requests/Files uploaded by D. Benjamin Miller#Files uploaded by D. Benjamin Miller (talk · contribs) 2

— Alexis Jazz (talk or ping me) 17:55, 22 November 2023 (UTC)

Ask George Romero if he ever got Night of the Living Dead back out of the public domain after it was accidentally released in cinemas for a few years without a copyright licence.... (Ironically you would need to raise him as a zombie to ask, but there we go.) Historically even accidental copyright releases are held to that. So commons wouldnt be incorrect in saying *for the moment* that anything released on a free licence is *free*. Because there is a lot of previous cases that absolutely support that. Of course the other side is, dont mess with the mouse. Only in death does duty end (talk) 18:11, 22 November 2023 (UTC)

Only in death, true, true, Debbie Does Dallas is also public domain. But those are older US cases of failing to include a copyright notice, which was literally required by law at the time. A Creative Commons license on Flickr or YouTube is uncharted territory, and I honestly doubt it'll generally hold up unless the companies were clearly aware of what they did. If they put out a press release to say "we're releasing a bunch of stuff with a free license!", sure, but that's not the case. — Alexis Jazz (talk or ping me) 18:44, 22 November 2023 (UTC)

As to how we could technically achieve it, MediaWiki:Bad image list. Or we could go fully nuclear and overwrite the files locally with blank images and protect, so you can't get to the images on the en.wikipedia.org domain at all. —Cryptic 18:18, 22 November 2023 (UTC)

Note: the latter requires the reupload-shared right which only administrators have. — Alexis Jazz (talk or ping me) 09:13, 24 November 2023 (UTC)

You need to be an admin to protect them, too. Or edit the mediawiki namespace, for that matter. —Cryptic 09:54, 24 November 2023 (UTC)

I don't exactly think it's a great idea to effectively locally intervene with images on Commons unless you're trying to start a war with Commons and lose a lot of trust in the process. —Matrix(!) (a good person!)_{[Citation not needed at all; thank you very much]} 19:01, 4 February 2024 (UTC)

While I agree the liberal interpretation of Commons rules means we can host these, it's worth having a more in depth discussion for the sake of our re-users. That discussion shouldn't be here, though; it should be on Commons, which is where they're hosted. — Rhododendrites ^talk \\ 21:15, 22 November 2023 (UTC)

Rhododendrites, that'd be ideal, but that discussion so far is what resulted in the undeletion of Spongebob. And I generally avoid Commons as it seems to be bad for my health.
It's not without precedent to locally disallow some images from Commons. For example, files with {{c:Template:PD-US-no notice}} are not allowed in articles on the German Wikipedia. — Alexis Jazz (talk or ping me) 09:49, 23 November 2023 (UTC)

Commons has almost certainly screwed up, and the WMF lawyers should probably check in. We had a very similar situation where some subsidiaries of Ubisoft uploaded some gameplay trailers for their games and the like with permissive licensing turned on, but it was investigated, and of course it was just a mistake of the uploaders and not really releasing all this into the public domain (see c:Commons:Deletion requests/Template:Attribution-Ubisoft 3, which redirected the template to Copyvio). Some random social media consultant getting paid 30K a year clicking the wrong settings on a YouTube upload doesn't mean it's actually free, in the same way that getting a clerk at the convenience store to give you permission to use the store's name & logo yourself doesn't mean much. In the deeply unlikely situation of SpongeBob being released under a permissive license, it needs to come from, like, the general counsel of Nickolodeon, not from NickRewind's YouTube guy. (And hell, even if the video is really freely licensed, that doesn't mean everything in it is - if I take a freely licensed photograph with SpongeBob in the background, that doesn't free SpongeBob.) SnowFire (talk) 06:27, 24 November 2023 (UTC)

That linked discussion does not seem all that similar to me. Yes, there were a few people arguing that a signed and notarized statement from the executive board would be required for a valid license release. But ultimately the decision there turned on whether the somewhat vague discussion of terms reflected a license that was sufficiently free or not, particularly with respect to one point where the company representative stated that they were reserving the right to "revoke" the license grant with respect to any particular use they didn't like. In this case there's no ambiguity on that point as the release here is explicitly CC-BY. Anomie⚔ 14:45, 24 November 2023 (UTC)

Ah, I picked the wrong discussion to link to. The Ubisoft thing was weird but I'm not sure on the details (see c:Commons:Administrators' noticeboard/Archive 19#Finally an answer from Ubisoft, a long time ago, although apparently this went through multiple rounds since this is much earlier than the discussion I linked to). I was thinking of Bandai Namco, which had gameplay trailers on YouTube under an explicitly permissive license, even to properties they didn't own, and people were creating still images from them, so a very similar case. See Wikipedia talk:WikiProject Video games/Archive 122#Tales of Zestiria issue, c:Commons:Administrators' noticeboard/Archive 72#Licensing of Bandai videos probably invalid, and c:Commons:Deletion requests/Files in Category:Videos by Bandai Namco from a quick search. And yeah, in the case of Bandai Namco, it was just some intern who clicked the wrong button, not an actual release into creative commons. Per above, even if that was not the case, there needs to be some sort of semi-free tag that says "this video as a whole is creative commons, but that doesn't mean every single still image is kosher if the video shows something copyrighted" (the Trademarked tag?). SnowFire (talk) 15:34, 24 November 2023 (UTC)

SnowFire, {{De minimis}}? — Alexis Jazz (talk or ping me) 17:08, 24 November 2023 (UTC)

Why? That's not how CC licensing works – with the exception of ND licenses (not used here), which don't allow derivatives, the license does of course also apply to shorter excerpts, stills, and details of stills. "Elements in this image are protected by copyright" would only be the case if these elements belong to a different rightsholder who didn't allow their relicensing, but of this we have no evidence here. Gawaon (talk) 17:20, 24 November 2023 (UTC)

@Gawaon: That isn't really accurate, though. This is the most obvious with "freedom of panorama" issues. It is totally fine to release into the public domain a picture of, say, someone in the kitchen under cc-by. If you crop it to just the part of the image that's the Coca-Cola can, sorry, Coke's images aren't suddenly CC now. It would be ridiculous if a video that involved random SpongeBob stills from some random fan or other party didn't mysteriously release SpongeBob himself into CC, but the same exact video if released by a Nickelodeon affiliate was assumed to do so because the top-level of Nick owns SpongeBob. SnowFire (talk) 20:14, 24 November 2023 (UTC)

Sure, but if Coca-Cola releases Coke can images under CC, then that Coke can images are CC-licensed. And that's what's really the case here, right? We're talking about a release by the rightsholder (in so far as we can tell), not by some random third person who doesn't have the rights to SpongeBob in the first place and so cannot give them away. Gawaon (talk) 20:47, 24 November 2023 (UTC)

@Gawaon: The whole point is that the rightsholder almost certainly did not release this into the public domain a free license, by basic common sense. It's just a clerical error. I've cited two cases above where there was believed to be a surprising, major release into CC and it turned out it was just a mistake in video settings. It is incredibly unlikely this was intended to be a stealth release into the public domain a free license. Are you arguing that, if you found yourself mysteriously teleported into a conversation with Nick's general counsel, they'd say that yes, they really meant to release SpongeBob? Or is the claim that it doesn't matter what the counsel says, if one social media intern says otherwise it's too late no take backs? SnowFire (talk) 23:00, 24 November 2023 (UTC)

As JohnCWiesenthal pointed out farther below, NickRewind has been publishing CC-licensed videos for years, so a clerical error seems unlikely. If it was an error, they would have noticed it long ago. And CC is not "the public domain" – some rights (such as attribution) still apply. Gawaon (talk) 23:17, 24 November 2023 (UTC)

I don't find that one terribly useful either. The question about whether Bandai Namco actually had the rights to release various pieces of content as CC-BY in the first place seems a good one (but not relevant here), but appears to have not gone anywhere. Instead an "a signed and notarized statement from the executive board would be required" type attitude won out. Anomie⚔ 14:14, 25 November 2023 (UTC)

(de-indent) @Gawaon: I'm very familiar with the difference, was just speaking generally and the difference isn't that important here. The CC setting being there for years just means that... the setting has been wrong for years, no different than finding a Wkipedia article that's been wrong for years, which happens all the time. Or that the release was strictly the video parts like interviews and not the brief flashes of copyrighted characters. Okay, so you're saying that Nickolodeon really actually intended to release SpongeBob into CC? That if you called up the Nick CEO and counsel they'd agree with "yes, that's the plan, anyone can go make SpongeBob derivative stuff, go nuts"? That's the question very specifically I'm raising and you're not answering: do you really think that this was truly intentional at the highest levels of the company? Like, if you had to place money on a bet, say? (Because if we don't have that level of intentionality, it shouldn't be on Commons.) SnowFire (talk) 00:57, 25 November 2023 (UTC)

> Because if we don't have that level of intentionality, it shouldn't be on Commons.

As you note, this is really a Commons debate, and not a Wikipedia one (and so should be had there).

Anyway, this is a dangerous and unworkable standard. The principle is to raise the standard of evidence for a valid license — and in practice open the door for license revocation, which CC licenses are specifically designed to avoid. A license grant does not need to be "truly intentional at the highest level of the company" in order to be valid. D. Benjamin Miller (talk) 08:24, 25 November 2023 (UTC)

No, you cannot use characters from SpongeBob SquarePants on your own merchandise, because they are protected by trademark law. The same goes for Mickey Mouse even after he goes into the public domain next year.

NickRewind has released its videos under the CC BY license since September 12, 2020. Disney Channel Israel has done similar even earlier since November 27, 2018. It's highly unlikely that this was an unconscious decision on their part considering that they've done this for years.

In my opinion, the {{Trademark}} template should be added to the file descriptions of these videos and derived audio excerpts, video clips and screenshots per c:Commons:Deletion requests/Files in Category:Hogwarts Legacy. --JohnCWiesenthal (talk) 15:31, 24 November 2023 (UTC)

CC BY specifically grants a license for adaptations. Disney can only protect Mickey Mouse with a trademark because they haven't also granted everyone under the sun a license to do what they like with him. This is a very different thing from simply going into public domain because the copyright term expired. MrOllie (talk) 15:46, 24 November 2023 (UTC)

I don't think we (or Commons) have much to worry about licensing issues here. Nickelodeon is very likely the rightsholder of that series (as it's produced for them), so if one of their official Youtube channels applies a CC license to that stuff, that should be valid. A licensing decision can't be "undone" later, even if the rightsholder should later feel regret (of which we see no signs here, as far as I can tell). Gawaon (talk) 17:14, 24 November 2023 (UTC)

JohnCWiesenthal, Applying a CC license to your trademarks and logos could even result in a loss of your trademark rights altogether.
The same goes for Mickey Mouse even after he goes into the public domain next year.
Well it'll be interesting to see what will happen exactly. Did you really think Disney wasted loads of money on the Mickey Mouse Protection Act to protect Steamboat effing Willie if trademarks were guaranteed to be sufficient? I kinda think that if I created a webcomic with a mouse based on the looks of Mickey in Steamboat Willie and I don't call that character Mickey Mouse (maybe.. Lickey Louse), I just might be in the clear. Why on earth anyone would even want to do this is another question, that version of Mickey isn't particularly appealing. — Alexis Jazz (talk or ping me) 17:27, 24 November 2023 (UTC)

For what it's worth, the first Mickey Mouse cartoons will enter the public domain in the US on January 1, though that's neither here nor there. D. Benjamin Miller (talk) 18:06, 24 November 2023 (UTC)

@Alexis Jazz Also, a work need not meet the threshold of originality for copyright protection to be eligible for a trademark. For example, U+24C0 (Ⓚ) and U+24CA (Ⓤ) are definitely in the public domain, but you may be sued if you were to use them on food packaging. JohnCWiesenthal (talk) 20:28, 22 January 2024 (UTC)

Unlike the Ubisoft case, the terms of the license here are not unclear. CC-BY 3.0 is a perfectly acceptable license — that much isn't in dispute. The assertion isn't that the form of license is bad, but that it wasn't validly applied to the content. There are, as far as I can tell, two main grounds on which this would be argued:

1. The person who purported to release the content wasn't the copyright holder and so had no legal authority to do so.
2. A large corporation couldn't have meant it!

Case 1 is fairly common — it's what's behind all examples of Flickr laundering, for instance. If I interviewed Tom Kenny, that would be perfectly fine, and I could CC-license my pictures or video of him, but if, during my interview, I showed some copyrighted pictures whose rights belong to someone else (and which aren't covered by a free license), then those pictures wouldn't be freely licensed, of course, even though my video of Tom Kenny would be. Arguably, some of these cases might involve channels not in fact operated under authority of the copyright holder, where the channel operator has surpassed the terms of the license.

As far as we understand, the Nick Rewind channel isn't such an example — which takes us to Case 2. It's a channel which is operated by Nickelodeon. Some of the videos on the channel are CC-marked (and some aren't). The CC-BY 3.0 license is free and irrevocable — if it's validly been granted, then it can't be taken back. The fact that CC-BY 3.0 is explicitly marked on these videos put out on Nickelodeon's official channel would be strongly in the reuser's favor in a lawsuit. I know that some large corporations are reputedly abusive about copyright, but if they themselves give explicit permission (which is what CC-BY is), and it is verifiably their channel (it is), then they cannot sue you on the theory that this didn't count. They are, after all, responsible for their representations of the license status they attach to their work.

As others have mentioned, this really has to do with what media are acceptable on Commons. If you don't want to get involved in discussions on Commons, OK. But Commons and Wikipedia are both WMF, so if it's really about legalities, then the question is the same whether here or on Commons.

In any case, banning certain Commons images from enwiki is a terrible idea (especially on the basis of such a shaky rule as given above). The German Wikipedia's basis for doing so is that they only accept images that are PD in DACH countries (even though Wikipedia is hosted in the US). Whether or not that should be their policy is a question for the editors there, but it at least has a fair principle behind it and applies to general classes of file. The principle here is far more dubious, not based on a legal distinction (only on the assumption that you cannot win over the community on Commons, rather than different rules being applicable) and hard to maintain (as it would apply to individual files). D. Benjamin Miller (talk) 18:40, 24 November 2023 (UTC)

Oh, and it seems absurd and backwards to say that files allowed on Commons (due to CC-BY licensing) should be disallowed on Wikipedia in an instance where they are actually equivalent to a claimed fair use file on Wikipedia. The basis of our decisions isn't whether or not a lawsuit would occur — we are actually more principled than that; other sites regularly reuse images with impunity and virtually never get sued (and WP:NFCC is stricter than what fair use would allow). The purely hypothetical lawsuits you gave involve people making scandalous derivative works. Even putting aside whether or not such suits would happen and what the results would be, that discussion certainly belongs on Commons (which is a repository for reusers) and not Wikipedia. D. Benjamin Miller (talk) 18:46, 24 November 2023 (UTC)

Oh, and it seems absurd and backwards to say that files allowed on Commons (due to CC-BY licensing) should be disallowed on Wikipedia in an instance where they are actually equivalent to a claimed fair use file on Wikipedia.

Exactly. Yann's uploads of clips from Bunk'd, Raven's Home and Secrets of Sulphur Springs were actually removed from those pages for no given reason, twice.

Like, why should those clips be allowed on the French Wikipedia but not here? JohnCWiesenthal (talk) 20:58, 25 December 2023 (UTC)

As far as we understand, the Nick Rewind channel isn't such an example. Are we sure? Does the Nick Rewind channel hold the copyright to Spongebob Squarepants? Nick Rewind may be able to eventually trace it's corporate ownership up to Viacom International Inc., same as Spongebob, but that doesn't mean that Nick Rewind is the rightsholder. --Ahecht (TALK
PAGE) 22:13, 6 December 2023 (UTC)

It seems fairly irrelevant at this point. Legal has contacted Nickelodeon for clarification, so we can simply stand by and wait what will happen. Gawaon (talk) 23:04, 6 December 2023 (UTC)

Just blacklist all Commons files that are claimed to be free images. We are not responsible for Commons screwups. Black Kite (talk) 18:50, 24 November 2023 (UTC)

It can also be argued that the CC license only applies to the clips themselves and not the overall work. For example, Warner Music New Zealand uploaded excerpts from the Dua Lipa songs "Be the One", "Blow Your Mind (Mwah)", "IDGAF", "Hotter than Hell" and "New Rules" to YouTube under the CC license (see File:Dua Lipa samples from 5 songs.webm).

Does this mean that all songs on her eponymous debut album are free to use by anyone? No, the license in theory should apply only to those five excerpts. --JohnCWiesenthal (talk) 18:52, 24 November 2023 (UTC)

Of course any license only applies to the works that were released under it. That much is not in dispute. Gawaon (talk) 19:45, 24 November 2023 (UTC)

Has anyone tried contacting Nickelodeon/Disney's legal department to see what they think? Galobtter (talk) 23:27, 24 November 2023 (UTC)

I'm with D. Benjamin Miller on this one. A free work is a free work, CC licences are irrevocable, and it's not our job to audit the internal procedures of media companies. I don't think protecting our reüsers from frivolous litigation is a good argument, either, as that in this case would mean promoting intellectual property even beyond what the IP owners claim. -- Maddy from Celeste (WAVEDASH) 15:52, 26 November 2023 (UTC)

@Alexis Jazz: this is the best village pump initial post I have ever seen. 10/10, no notes.

I have emailed Legal with a request they share their perspective on this issue. I personally think it is highly unlikely whoever clicked the "CC BY" button on YouTube had the legal authority to do so, but I would love to be wrong. HouseBlaster^talk 03:20, 27 November 2023 (UTC)

HouseBlaster, glad you liked it! Legal most probably won't respond, and they might be slightly annoyed you contacted them as this might give them "actual knowledge". I considered posting this on Jimbo's talk page, maybe I should have just done it, I don't know, maybe consider it if this kind of thing happens again. What I had drafted was a section titled "Spongebob Squarepants Spongebob Squarepants" with something like "Hey Jimbo, there's discussion on WP:VPP that, to be honest, we don't really need specifically your opinion on. So this thread is kinda pointless, I realize that. Unrelated fun fact: when Legal is made aware of copyright issues, that knowledge may legally require them to act, which can possibly annoy them. Also unrelated fun fact: you are not expected nor have a legal obligation to read the nonsense random users write on your talk page. Good day sir."
Also! Legal won't take Spongebob down because there's a legitimate fair use defense. No, there's no fair use template on Commons, but that doesn't matter legally. Templates are opinions, not legal statements. Quotes from Jrogers (WMF): "I do think the BP Helios logo is creative enough for copyright protection" ""That said, I think the 1 o'clock image is hosted as a fair use". (in reference to a file hosted on Commons with a PD-textlogo template) — Alexis Jazz (talk or ping me) 07:04, 27 November 2023 (UTC)

While the original videos may be marked in a free license, it is obviously clear that the free license suddenly doesn't translate to make all content of the videos free. We have had this issue with Voice of America videos before, which generally are released under a free license but include photos and short videos that are clearly not free.

Also, the recent copyright office ruling related to the character of Sherlock Holmes being distinct from the stories that feature him also applies (and as many people will likely discover next year when Steamboat Willie falls into the public domain) It is 100% clear that Spongebob is a copyrighted character well into the latter half of this century; the appearance in a freely-licensed video does not magically make it free. Masem (t) 04:05, 27 November 2023 (UTC)

Unlike Voice of America which occasionally uses licensed clips from sources such as the Associated Press, NickRewind's Nickelodeon clips should not be considered as "licensed" as NickRewind is owned by Nickelodeon. Also, some of NickRewind's CC-BY videos, such as episode clips, consist purely of material from previous series. --JohnCWiesenthal (talk) 05:13, 27 November 2023 (UTC)

JohnCWiesenthal, there's no guarantee the license setting was even a conscious act. If the license setting is the result of a software bug, an intern who doesn't know what they're doing or a rogue employee, that's most probably (I have no knowledge of this having ever been litigated) not enforceable. If it were enforceable, random interns would be operating under a risk that's uninsurable.
Even if it were fully intentional, the IP should be legally isolated to prevent rogue copyright transfers or permissive licensing without signatures from higher-ups and/or lawyers. Within the company, higher-ups can probably sublicense the IP to Nick's subsidiaries, but that sublicense wouldn't itself be sublicensable and may carry additional restrictions.
The only legal effect a social media copyright setting might have is that Nickelodeon will have a harder time suing people who use it for damages. That doesn't mean the license will hold up (you'd still have to take your use down or obtain an actual license), and it's far from guaranteed. One may need to plead insanity 🤪 to convince the judge they really believed this license to be legit. To be clear, I'm not saying you are insane, I'm only suggesting someone who starts printing Spongebob lunchboxes and manages to become the defendant in a criminal case may need to claim legal insanity to be found not guilty. — Alexis Jazz (talk or ping me) 07:52, 27 November 2023 (UTC)

Don't forget that there are still trademarks involved here too. Everybody can use all of Wikipedia's content and even set up their own wikiclone, but they aren't allowed to name that wikiclone "Wikipedia" – that's a trademark issue, and our trademarks are not free. Similarly everybody is now allowed to print that Spongebob image at the top of this thread on a T-shirt or lunchbox and sell it – and I am confident that they would get away with that in court, if they should be challenged – but that doesn't mean they have the right to advertise it as Spongebob Squarepants merchandise. For that they would still need to get additional permission from Nick's legal department, which they very likely wouldn't get. Gawaon (talk) 09:01, 27 November 2023 (UTC)

Note to self: do not hire Gawaon as a lawyer.
"Creative Commons does not recommend using a CC license on a logo or trademark. [...] Applying a CC license to your trademarks and logos could even result in a loss of your trademark rights altogether."
Yes, Wikimedia did this. The puzzle globe is Creative Commons and protected by trademarks, which isn't strictly ideal, but Wikimedia had an incentive to do this, and the puzzle globe isn't a commercial product. At least not the way Spongebob is for Nickelodeon. Also, the puzzle globe was IIRC made by users, not WMF staff, and those users didn't own the trademark. So their Creative Commons licensing doesn't dilute the trademark. You won't (or shouldn't) see a Wikipedia wordmark with Creative Commons license from the foundation. That would be PD-ineligible/PD-text. — Alexis Jazz (talk or ping me) 14:26, 27 November 2023 (UTC)

Creative Commons licenses don't deal with trademark in any way. You can verify this by reading the text of a CC license, or, in fact, that of the page to which you link: "Yes, you may offer material under a Creative Commons license that includes a trademark indicating the source of the work without affecting rights in the trademark, because trademark rights are not licensed by the CC licenses. However, applying the CC license may create an implied license to use the trademark in connection with the licensed material, although not in ways that require permission under trademark law." D. Benjamin Miller (talk) 20:14, 27 November 2023 (UTC)

While you've presented a wonderfully baroque scheme which you say we must presume exists, the implied facts here are quite different from those on the ground.

If we were discussing a license tag that was removed after ten minutes on a single video, then perhaps your theory would be more justifiable. In this case, we are talking about a license tag applied to most videos for multiple years, on a channel that is verifably owned by the copyright holder. Nickelodeon, through this channel, distributes the videos under this explicit public license. While it could at any time cease to do so (though this wouldn't affect the validity of the license for existing recipients and further downstream recipients), it never has.

Reliance on the notices attached to those videos can hardly be the province of the insane. The level of skepticism demanded here is considerably higher than that of a reasonable person, and I'm fairly sure that a court would agree. Allowing for a corporation to attach a license to its copyrighted content for years and then act as though it never did would be disastrous as a matter of public policy. D. Benjamin Miller (talk) 20:52, 27 November 2023 (UTC)

@Masem: Also, the recent copyright office ruling related to the character of Sherlock Holmes being distinct from the stories that feature him Can you provide a link? Is this something more recent than Klinger v. Conan Doyle Estate, Ltd.? Anomie⚔ 13:08, 27 November 2023 (UTC)

My bad, that case is what I was thinking of and its repercussions (eg the Enola Holmes films for exampke) Masem (t) 14:43, 27 November 2023 (UTC)

Creative Commons Attribution 3.0 != public domain, to be clear.

As for Sherlock Holmes: yes, that comparison is relevant. But the cases are a bit reversed from one another. In the Sherlock Holmes case, the vast majority of Arthur Conan Doyle's Sherlock Holmes stories were in the public domain, while a few were still in copyright at that time. The Arthur Conan Doyle heirs were arguing that Sherlock was only truly complete once all the stories were finished, and that thus any use of the character would infeinge on the last stories that completed his development. This was (sensibly) rejected.

The SpongeBob case involves a relatively small amount of material from the original series, and that material is under license, rather than being in the public domain (although I'll grant that the license is fairly liberal). The vast majority of SpongeBob content would have to be avoided as a basis for an adaptation on the grounds that it isn't licensed.

More broadly, this all ties into an issue often elided in discussions of copyright in characters, which is the relationship between copyright in works of authorship and in constituent elements, including characters developed in those works. D. Benjamin Miller (talk) 20:29, 27 November 2023 (UTC)

In my opinion, all such SpongeBob uploads need to be immediately speedy-deleted as copyright violations and such uploaders trout-slapped. (I've noticed that the person who uploaded the SpongeBob image above, for example, has used a similar rationale to upload a video containing iCarly's theme song, which is currently undergoing a deletion discussion, as well as an image of the Annoying Orange.) You don't get to silently put SpongeBob under a free license after years of taking down YouTube Poops based on SpongeBob episodes, despite them having a very strong fair use argument. Also note that Google's explanation of the license, visible under every YouTube upload licensed as CC-BY, does not mention commercial use, nor does YouTube, unlike Flickr, allow the use of CC licenses other than CC-BY. I'm also unsure as to what Stephen Hillenburg's estate makes of this...

That said, does anyone know where I can find contact information for Nickelodeon or Paramount's legal department? I think contacting them might be the best way out of this mess. -BRAINULATOR9 (TALK) 21:44, 28 November 2023 (UTC)

You do realize that these videos have been CC-licensed by NickRewind's own official Youtube channel, right? Gawaon (talk) 22:05, 28 November 2023 (UTC)

You and D. Benjamin Miller keep repeating this as if it isn't already understood. Again, it does not matter if a random clerk paid 30K a year at Big MegaCompanyX signs a document saying that the company's IP is free to use, or that they accept all financial liability for some Corporate Scandal, or that the company will contribute a million dollars to the WMF. Something that surprising and far-reaching needs to come with confirmation from higher up the chain, say a press release from Nickolodeon announcing they're releasing SpongeBob into Creative Commons. If this wasn't true, that any random disgruntled employee on their last day could just randomly donate all the IPs owned by the company into the public domain, no take-backs. Also, this would never get in front of a judge, but if it somehow did, judges are not, like, robots. They assess the full circumstances. That judge is going to ask "did you really think SpongeBob was intentionally released under a permissive license, and the notification of this was a setting on a YouTube video? And that you didn't need to check with Nickelodeon to make sure?" If your answer is "yes", then the judge is going to get mad at you.

Anyway there's a very simple way forward: get confirmation from Nick on whether everything is CC (deeply unlikely), the video-as-a-whole is CC but not the brief copyrighted stills (in the same way as a home video with SpongeBob in the background doesn't mysteriously release him into the public domain), or the whole creative commons video setting was wrong. If the people who want to keep the images can't be bothered to do that, the extracted images should be deleted. SnowFire (talk) 22:33, 28 November 2023 (UTC)

Yes, but it looks to be little more than a default setting that some barnacle head set years ago and no one ever caught or paid attention to. -BRAINULATOR9 (TALK) 22:48, 28 November 2023 (UTC)

So that deletion request closed as keep. Ugh. -BRAINULATOR9 (TALK) 01:27, 20 December 2023 (UTC)

You don't get to silently put SpongeBob under a free license after years of taking down YouTube Poops based on SpongeBob episodes, despite them having a very strong fair use argument.

— @Brainulator9:

People have been saying the same about music from the Beatles for years, only for them to upload their entire discography all at once on June 17, 2018.

What I'm saying is that there can be instances of even the most unlikely license holders turning on a dime like this. JohnCWiesenthal (talk) 01:50, 20 December 2023 (UTC)

Upload them where? And under what license? The samples on the Beatles article are all marked non-free. -BRAINULATOR9 (TALK) 02:16, 20 December 2023 (UTC)

I never said anything about a different license. I'm just noting that the Beatles' core catalog, The Beatles Anthology albums, 1, 1962–1966, 1967–1970 and Love – among others – were all uploaded to YouTube on that date simultaneously, after years of their music effectively being banned from YouTube. JohnCWiesenthal (talk) 02:49, 20 December 2023 (UTC)

That's still an apples to oranges comparison. The Beatles did not license their music as CC-BY when they uploaded their music to YouTube. -BRAINULATOR9 (TALK) 03:42, 20 December 2023 (UTC)

My point is that what can be considered the status quo (the takedowns of Viacom clips and Beatles excerpts) can change in an instant. Just because something has always been the case doesn't necessarily mean that it will remain as such. JohnCWiesenthal (talk) 03:52, 20 December 2023 (UTC)

However, a CC license is not just a "status quo", but a legally binding instrument, on which the rightsholder cannot have second thoughts – certainly not after years. This is getting fairly ridiculous. Legal has contacted Nickolodeon, let's see if and when they hear back from then. Until then there is nothing more to do or discuss in this regard. Gawaon (talk) 07:10, 20 December 2023 (UTC)

This is a long read but honestly there's more smoke than fire here... Its not our problem and while I respect the high minded hypotheticals its not an issue until its an issue. Horse Eye's Back (talk) 22:38, 28 November 2023 (UTC)

Strong agree. Zero reason to think any litigation will arise. Mach61 (talk) 03:05, 29 November 2023 (UTC)

But see c:COM:PCP, which does not allow us to keep files on the basis that we can get away with it. -BRAINULATOR9 (TALK) 22:27, 29 November 2023 (UTC)

Horse Eye's Back, if you find a bear in your backyard, do you say "it's not an issue until it's an issue" or call animal control? Do you insist we must wait for some poor soul to actually get sued into bankruptcy?
Mach61, the only way you can make that argument is if you believe nobody will be stupid enough to commercially exploit this "license" because they understand it won't hold up in court. In that case, why accept images without a valid license to be embedded on Wikipedia in the first place? — Alexis Jazz (talk or ping me) 11:26, 29 November 2023 (UTC)

Apparently you don't live in an area with bears... If I called animal control and told them a bear was in my backyard they would ask whether it was causing damage or being a threat to people... If the answer to both was no they would ask me not to call again until the answer was yes. If I continued to call animal control every time I found a bear in my backyard I would eventually be charged with a misdemeanor for abusing 911. Horse Eye's Back (talk) 15:19, 29 November 2023 (UTC)

Fine, let's say our concern is solely for the "little guy", not "corporate asshats." Consider the following scenario. A different image is uploaded to Commons under a free license, but in truth, it's been Flickr-washed in a non-obvious way, and was really copyrighted. The innocent citizen who used that image in good faith for their book or whatever is given a scary demand letter by a corporate lawyer asking for big money. Our hapless reuser talks to his own lawyer about the odds if the case somehow went to trial. His lawyer says that his case may look better if trusting Commons licenses is seen as rational and an unavoidable, innocent mistake. The corporate lawyers' job is to show that trusting Commons licenses is stupid. What's exhibit A that a Commons license claim is worthless? That a blatant copyright infringement was hosted and explicitly given a thumbs-up by the Commons administrators. Now our little guy's case is worse, and he may have to settle on worse terms than if otherwise. SnowFire (talk) 22:19, 29 November 2023 (UTC)

The words "in an non-obvious way" are doing a lot of work here, to the point where this principle would require us to discard basically all material posted online. After all, who's to say that Bob really took the photos he uploaded as his own work on Flickr, and that they weren't actually taken by his buddy Jeff and uploaded without Jeff's permission? Followed to its logical conclusion, this would require us to reject virtually every image that was not in the public domain due to term expiration or released by a governmental body.

And this is not a trusting-Commons scenario. After all, we link back to an original source, which is Nick's YouTube channel, which has a "verified" badge on YouTube and where you'll find the license that Commons indicates. The question is whether or not the user can trust that a verified Nickelodeon channel on YouTube's license tag is actually valid, not whether or not all Commons tags are necessarily always right. D. Benjamin Miller (talk) 22:54, 29 November 2023 (UTC)

You didn't understand the scenario I described. I'm talking about some unknown, really-copyrighted other image (i.e. not SpongeBob) hosted in good faith (of which I guarantee there are at least some of such images on Commons because it's impossible to be perfect with a free upload form for users). We can't preemptively discard these cases even if we wanted to because it's not even clear that the licenses are wrong. Our hypothetical image - call it image C - looks like it's free use, but we don't know that it's really copyrighted in this scenario until the copyright holder sends the demand letter off, which is a thing that can and does happen. If it looks like Commons takes copyright infringement seriously, then things look better for innocents trusting it then if it looks like Commons is run by people who confuse wishes with legal reality.

Going back to SpongeBob and if it's really copyrighted, did you read Alexis Jazz's initial post? Do you think you personally are ready to take the plunge and go legally sell some SpongeBob-themed merchandise without talking with Nickelodeon first? If not, why are you willing to tell others that they can do so? (And if you do genuinely well and truly believe that the YT license setting means that the doors have been opened and you can go get rich selling SpongeBob merch, please, please talk with a lawyer first.) SnowFire (talk) 23:46, 29 November 2023 (UTC)

It's not really relevant, because the user is not expected to trust Commons. Anyone whose argument in court is that the license must be valid because it was listed that was on Commons is foolish, because the argument that the license was given on what Nickelodeon publicly identifies as one of its official YouTube channels is much stronger.

I'm not interested in selling merchandise. If I were, I'd be more interested in the trademark implications, not the copyright ones. Actually, that is an interesting legal question — the trademarkability of characters and their likenesses — but that's a different matter.

If you're asking me whether or not I think the CC copyright license is valid, I'll still say yes. D. Benjamin Miller (talk) 00:13, 30 November 2023 (UTC)

I can't comment on Nickelodeon's enforcement policy but, in general, I would not attempt to exploit a borderline-protected image even if a loophole permitted it. If I did, I would expect the owner's lawyers to pursue the matter until my life savings had been drained into my lawyers' coffers, at which point I'd lose the case, guilty or not. In practice, litigation can be determined by who is better funded rather than who is right, and rights holders' pockets are generally much deeper than mine. This seems particularly true for cases brought in the U.S. As you have probably guessed by now, I am not a lawyer. Certes (talk) 09:35, 30 November 2023 (UTC)

This type of thinking (at least, before WMF legal was brought in) is what made the National Portrait Galley and the monkey selfie bigger issues than they needed to be for WP. We must as editors be proactive on removing questionable copyright problems until cleared by WMF that they will vouch for them. Masem (t) 15:27, 29 November 2023 (UTC)

The difference between you and I is that apparently I don't consider those big issues, those were extremely minor issues. Why do we need to waste editor time to satisfy corporate asshats when we pay perfectly good lawyers to do that? The downside here is so small as to basically not exist, worst case scenario we have to fundraise a few million. I'm happy to waste editor time on something we know is an issue, but not because some editor legal eagle did some OR and thinks we might be in jeopardy. Horse Eye's Back (talk) 15:44, 29 November 2023 (UTC)

It may be worth mentioning that both of those cases involved mainly questions of law, not of fact. In the NPG case, the question is really (to some extent) one of UK law, but (even beyond that) whether or not the (US-based) WMF would decide to apply US law rather than deal with UK law (since Corel is unambiguous). The monkey selfie case, too, was really just a matter of law (whether or not a monkey's selfie can have authorship for copyright purposes). Here, we are dealing with much more of a question of fact (whether or not the license was granted by the actual copyright holder) than one of law, although the question of what might constitute such a grant is to some extent one of law.

And, importantly, in both those cases there was no problem and the content was in the public domain. D. Benjamin Miller (talk) 22:41, 29 November 2023 (UTC)

I am concerned about the imprecision in some of the comments here. It appears that Nickelodeon has licensed this a small number of specific images. That is not equivalent to releasing the copyrights on the characters as a whole or the entire series. The entire SpongeBob SquarePants (franchise) is not "a work" in terms of copyright law. AIUI each of the two images at the top of this thread would qualify as "a work". You can license one work without licensing all of them. WhatamIdoing (talk) 02:32, 30 November 2023 (UTC)

Then what exactly does that make any of NickRewind's other uploads where they post various clips of past Nickelodeon shows like iCarly and Victorious? If the CC-BY license is correct, I could very much bundle them all onto a DVD and sell those. -BRAINULATOR9 (TALK) 03:47, 30 November 2023 (UTC)

I'm primarily concerned with the gap between "These specific, individual works are freely licensed" and "All of Spongebob Squarepants is now freely licensed". WhatamIdoing (talk) 05:01, 30 November 2023 (UTC)

WhatamIdoing, if it matters, the clip they were extracted from contains many more bits of footage as well as voiced lines. — Alexis Jazz (talk or ping me) 10:47, 30 November 2023 (UTC)

Yes. But not everything. WhatamIdoing (talk) 16:12, 30 November 2023 (UTC)

@Houseblaster, if you or anyone else wants to force WMF Legal to look at this, upload https://imgur.com/a/ekW9o7g to any Wikimedia project and draw WMF Legal's attention to it. As it's an inaccurate depiction, Legal can't ignore it as fair use. Drawing attention might be difficult, ideally Paramount would DMCA it, but "actual knowledge" can be achieved in other ways. — Alexis Jazz (talk or ping me) 19:30, 29 November 2023 (UTC)

The fact that this isn't how Squidward looks like in SpongeBob doesn't make it not fair use. It would almost certainly have little to no bearing on any fair use analysis. D. Benjamin Miller (talk) 22:56, 29 November 2023 (UTC)

D. Benjamin Miller, an accurate depiction can be used for critical commentary and identification. A three-headed Squidward is fanfic, and not original/innovative enough to apply for fair use as a parody. See c:Commons:Deletion requests/Files in Category:BP logos where Legal clearly differentiated between accurate and inaccurate depictions of the logo. — Alexis Jazz (talk or ping me) 10:53, 30 November 2023 (UTC)

That's just not how fair use works, though. Fair use is not a list of enumerated exceptions, but a method of holistic analysis. (Enumerated exceptions are what you'd find in some other countries' equivalent laws, but the US fair use doctrine does not use them. The Copyright Act gives "criticism" and "comment" as examples of purposes for which a copyrighted work may be used.)

The actual determination of whether or not a use is fair under US law is based on the four-factor test. D. Benjamin Miller (talk) 11:29, 30 November 2023 (UTC)

Legally correct but irrelevant. In a lawsuit three-headed Squidward may be considered fair use - probably mostly because I'm not commercially exploiting him and the lack of effect on the original work's value. But WMF Legal seems to be more careful in this regard as they took down the inaccurate BP logo but left the accurate logos up. — Alexis Jazz (talk or ping me) 12:15, 30 November 2023 (UTC)

I think there may be some confusion over the procedures and reasoning here.

BP sent a DMCA takedown for the inaccurate logo (but not for the accurate logos). As a result of the takedown notice, Legal was required to remove the requested file (subject to counternotice), but was not required to remove any others.

Legal expressed the opinion that the logo (accurate or inaccurate) was probably above TOO.

It happens that Commons doesn't allow content on fair use grounds (as a community rule). Legal explicitly said they don't enforce that — only the community does. Since they had not received a takedown request for that file and they believed it would not be an unlawful use to keep it up, Legal didn't remove it. The community users decided to remove those files separately.

(As an aside, although Josve05a says in that DR discussion that the DMCA notice was a determination that the BP logo was above TOO, this isn't quite true. The DMCA takedown of course implies this claim, and Legal found it reasonably likely to hold up, but nobody involved here can make a definitive determination.) D. Benjamin Miller (talk) 12:49, 30 November 2023 (UTC)

As a reminder, please everyone in this conversation, WP:AGF and WP:APR. (Oinkers42) (talk) 22:36, 29 November 2023 (UTC)

I have just found another company-owned international subsidiary YouTube channel uploading clips of TV series under the CC-BY license: Cartoon Network India. This YouTube account for the Warner Bros. Discovery-owned Indian TV channel has been using the CC license on many of its videos since April 23, 2019. This could potentially put excerpts from series such as Ben 10 (2016), The Powerpuff Girls (2016), Teen Titans Go!, The Tom and Jerry Show and We Bare Bears into question.

Should we discuss this YouTube channel as well? JohnCWiesenthal (talk) 07:12, 1 December 2023 (UTC)

Yes, and it's probably the same deal; some intern giving a broader license than was intended. This is especially worse since this is run by a foreign branch, with probably little oversight from the domestic portions of CN. -BRAINULATOR9 (TALK) 00:14, 2 December 2023 (UTC)

So Cartoon Network India started April 23, 2019. DisneyChannelIsrael started with [1] on November 27, 2018. It seems NickRewind started with Calling All Nick Kids ⏪ It's TIME to REWIND | NickRewind on March 19, 2019. This all suggests a software bug or Creative Commons default setting. — Alexis Jazz (talk or ping me) 18:05, 2 December 2023 (UTC)

Not to mention that Nicktoons uploaded some videos from March 27, 2019 to November 21, 2020 under a CC license. Nick Music also uploaded two videos under that license: one on July 2, 2020 and another on April 27, 2021.

It isn't just Nicktoons, Nick Music and NickRewind though. From March 22 to November 30, 2018, MSNBC released some of its videos under the CC-BY license, and a screenshot from one is used in the infobox for the Rachel Maddow article. JohnCWiesenthal (talk) 01:31, 3 December 2023 (UTC)

@Alexis Jazz Something else I've found that should be brought up is that Disney Junior Israel has also been uploading under the CC-BY license since December 2, 2018. With this information, I think it would be more difficult to prove that this license decision is unintentional. JohnCWiesenthal (talk) 23:41, 19 December 2023 (UTC)

I have just discovered that from August 13 to October 16, 2019, Disney Romania uploaded some videos under the CC-BY license, putting clips from series such as Fancy Nancy, Miraculous: Tales of Ladybug & Cat Noir, PJ Masks and Vampirina and even films such as Descendants 3, Frozen (2013), The Little Mermaid (1992) and Snow White and the Seven Dwarfs (1937) into question. JohnCWiesenthal (talk) 04:17, 7 February 2024 (UTC)

For Disney Channel Israel, I guess the subtitles/dubs can be interpreted somewhat as "digital watermarks," as either one can distinguish them from the original works:

• For dubbed videos, the video itself and any derived screenshots should be okay to use, but any audio must be in Hebrew and not any other language, including English.
• For subtitled videos, the audio is kept in English and should be okay to use. However, any included subtitles must be retained in the video and any derived screenshots as the versions without subtitles are not under the CC-BY license.

Do you guys concur with my interpretation? JohnCWiesenthal (talk) 05:50, 19 December 2023 (UTC)

I'd also like to note that we don't actually know who owns the rights to SpongeBob Squarepants the character, show or any other aspect. It could be the estate of Stephen Hillenburg, United Plankton Pictures, or some entity in the enormous octopus that is the Paramount conglomerate. If the YouTube channel is owned/operated by one subsidiary of Paramount/Nickelodeon Group and the rights are held by another subsidiary and licensed to the channel operators, then they didn't actually release it under CC-BY because they can't release something they don't own. The Wordsmith^{Talk to me} 03:24, 20 December 2023 (UTC)

Hi, Alexis Jazz and others above have mixed up several things above (I would have liked to be informed when you talk about me.).

First, it is not that because a video is under a free license that all its content can be used freely. The characters in such videos may still be under a copyright if at least one previous work is not free. We still delete files on Commons because the content is not free, even when the support itself is free (e.g. c:Commons:Deletion requests/Files in Category:Bugs Bunny, c:Commons:Deletion requests/Files in Category:Popeye, c:Category:Warner Bros. characters deletion requests, etc. Some may have been forgotten.). So you certainly can't sell T-shirts and mugs with the content of these videos.

Second, all these works are still under a trademark. So even if the video content is free, you can't use it to compete with these companies on their business.

Third, it is really stupid and arrogant to think that these companies and their employees don't know what they do, specially on legal matters. They have a huge legal department, which probably decided that a free license will help their marketing campaigns. Never underestimate someone when they do something unexpected. I did write to these companies inquiring about the validity of their free license, but I only got a mail saying that my question was forwarded to their legal department. Yann (talk) 22:22, 25 December 2023 (UTC)

But I wanted to sell a DVD based on iCarly clips, I could do that without violating copyright or trademark laws? -BRAINULATOR9 (TALK) 22:39, 25 December 2023 (UTC)

Probably not without violating trademark laws. IMO we can use extracts from these videos for illustrating Wikimedia projects, but I won't do more than that without a steel-armor for legal issues. But IANAL.

As someone says above, a warning in the description of these files might be a good idea. You are welcome to help. Yann (talk) 23:01, 25 December 2023 (UTC)

Would {{c:Trademarked}} be sufficient for said warning, or should the warning template be more specific? JohnCWiesenthal (talk) 02:13, 26 December 2023 (UTC)

I wonder how much Dastar Corp. v. Twentieth Century Fox Film Corp. plays into this. In that case, it was ruled that you can't use trademark law in order to target plagiarism without turning it into copyright law. So I imagine selling DVDs of, say, iCarly clips, would fall closer to copyright law (unless you made it seem like Nickelodeon or whoever supported the production and manufacturing of the DVDs themselves - that is, the physical item, not its contents). -BRAINULATOR9 (TALK) 04:47, 26 December 2023 (UTC)

Yeah, it is a tricky borderline. Responding to JohnCWiesenthal, we probably need a warning about derivative works. IMO the restriction is similar to freedom of panorama issues. The whole file is under a free license, but extracting some specific parts may come into breaking copyright laws. We also have had this issue for court cases (PDF files) which include copyright works as fair use. We can't extract these items under the pretext that the whole work is free of copyright. Yann (talk) 10:52, 26 December 2023 (UTC)

Don't we already have {{c:De minimis}} for this purpose? JohnCWiesenthal (talk) 17:34, 26 December 2023 (UTC)

Partially, though I don't think images of SpongeBob in a video about SpongeBob would count as being merely incidental according to c:COM:DM#Guidelines. -BRAINULATOR9 (TALK) 19:13, 26 December 2023 (UTC)

I meant that The whole file is under a free license, but extracting some specific parts may come into breaking copyright laws. sounds like c:COM:DM in general. So, I would think that a warning template for these purposes may be based on {{c:De minimis}}. JohnCWiesenthal (talk) 02:27, 27 December 2023 (UTC)

I preface my comment by stating that I am not a lawyer. I intend on providing a perspective to resolve this issue using pragmatic statements of fact and a foundation for further perspectives. It is my understanding, then, that the scope of employment for uploading the content does not consider the inclusion of material that has not been sublicensed, invalidating the Creative Commons licenses in the content referenced by Alexis Jazz, furthered by the absence of elucidated definitions of copyrighted material by the referenced parties. The Wikimedia Foundation legal department must seek further guidance from the referenced parties and, in order to assure conservative practicality with respect to the licensors, the copyrighted material must be deleted.

The basis for whether or not copyrighted content may be freely used once referenced in a medium that permits free distribution is a determining factor in this discussion, but not the solitary determinative. It is within Wikipedia's interest to use content that is available within the public domain or that which the copyright holder grants use to the general public as a licensee. For the purposes of this discussion, the public domain is irrelevant. With regards to the concerned parties, the videos in question have been licensed under the Creative Commons Attribution 3.0 Unported license, a permissible license under Wikimedia Commons. Copyright is assumed for original characters and derivatives under the Berne Convention; trademark, as referenced in Alexis Jazz's imaginative first question, concerns commercial use and is insignificant to a broader understanding of the situation.

The Creative Commons Attribution license assumes the most permissive and irrevocable position to licensees, an assurance that may serve paramount to a commercial entity. Walt Disney Television, for instance, licensed a July 2016 photograph of Paul Manafort under the Creative Commons Attribution-NoDerivs 2.0 Generic license. Walt Disney Television's photograph of Manafort, thus, cannot be uploaded to Wikimedia Commons as the prohibition of derivatives conflicts with free distribution. It is within the corporate interest to protect the commercial and derivative use of a work. The licensor is expected to knowingly apply the proper license and must be given the assumption of intent, irrespective of true intent.

The content in this discussion contains copyrighted content that has not knowingly been released under a free distribution license or within the public domain, necessitating the representation of a licensor or an explicit sublicense, the latter having not been achieved. Having read the legal basis behind the Creative Commons Attribution license, the individual who uploaded the referenced content cannot represent the licensor, as said individual had no involvement in the creation or licensing of the subcontent, regardless of the intention of the applied license. The judgement I hold would apply to all material referenced by Alexis Jazz. I previously upheld the belief that the Hogwarts Legacy trailer is able to be freely used and distributed; the trailer includes content that is the copyright of Warner Bros., including the logo of the game, and cannot be considered material eligible for the Creative Commons licenses. elijahpepe@wikipedia (he/him) 21:44, 30 December 2023 (UTC)

In regards to the last sentence, are you saying you changed your mind since that deletion request? -BRAINULATOR9 (TALK) 21:56, 30 December 2023 (UTC)

The last sentence seems oxymoronic. You first say that the trailer is able to be freely used and distributed, but then say that it cannot be considered material eligible for the Creative Commons licenses. What do you mean by this? JohnCWiesenthal (talk) 03:07, 31 December 2023 (UTC)

Related discussion on Commons

There is currently a discussion of Commons about freedom of panorama in Sweden, which involves a similar issue: what commercial exploitations are allowed? Quoting Clindberg: ″As for "commercial use", that can be a tortured term. As Commons uses it, it is strictly in relation to copyright -- things like trademark and publicity rights are considered non-copyright restrictions and are treated differently (it just has to be legal for Wikimedia to host the image, without worrying about how some uses may violate those other laws).″ Yann (talk) 15:40, 24 January 2024 (UTC)

Reply to HouseBlaster's email from WMF Legal

Hi, I'm BChoo (WMF) (talk · contribs). I thought I would paste my reply to the email from HouseBlaster here as well:

Thank you for writing to the Wikimedia Foundation's Legal Department, and for your summary of the situation. We are now looking into this. To start, one thing we will try to do is reach out to Nickelodeon with a question about their CC licensed content on YouTube. Given the time of year, I don't expect we will hear back right away. I've read the thread on VPP; I will post this reply there as well. Since we are prioritizing other legal matters, I can't promise regular updates or responsiveness on-wiki about this in the near term.

BChoo (WMF) (talk) 21:52, 29 November 2023 (UTC)

BChoo, thanks, I hadn't quite expected a public notice like this, I appreciate it.
If you could drop Disney a mail as well for their DisneyChannelIsrael channel that would be great. I'd do it myself, but (if I could get in touch at all) they'd get stuck in their script when I can't give them a Disney+ account name and refuse to reboot my phone.. — Alexis Jazz (talk or ping me) 11:11, 30 November 2023 (UTC)

One thought I have: I'm sure it's very much in their interest to try and claim they're still in copyright (though, that said, trademark is probably a big defense here). In some ways, if Wikipedia isn't all-in on it, this is how we encourage the creation of bad law that overturns a host of other public domain works. Adam Cuerden ^(talk)_{Has about 8.7% of all FPs.} 21:20, 25 December 2023 (UTC)

Public domain works? This phrasing sounds like when Warner Music Group had "Happy Birthday to You" under copyright for 122 years. JohnCWiesenthal (talk) 21:34, 25 December 2023 (UTC)

A reminder that a CC licensed work can include copyrighted portions under fair use allowances, but that doesn't magically convert the copyrighted portions to CC. There is supposed to be appropriate mention of the copyright origin of the fair use segments as part of the CC work, but even absent that, CC doesn't have this magical conversion in place. See [2]. --Masem (t) 02:32, 26 December 2023 (UTC)

It's also worth remembering, though, that if a copyright holder releases something under a non-revocable license like CC, they can't just take it back. It's like loss of the secrecy of a trade secret; once the cat is out of the bag, it is out.  — SMcCandlish ☏ ¢ 😼  06:31, 30 December 2023 (UTC)

January 2024 update from WMF Legal

Hi, I’m LRGoncalves-WMF, from Wikimedia Foundation’s legal department, and I just wanted to follow up on my colleague BChoo’s comment in this case. We reached out to Nickelodeon to give them a head-up about the CC license in their NickRewind videos and specifically asked them if Spongebob content is in fact CC-licensed. We have given them ample time to reply, but they did not directly answer our email. Based on some additional information, it’s likely that they have read it. For example, a day after I sent it all CC licenses had been removed from their Youtube videos. If you check NickRewind’s video with Spongebob right now, you will see that the license is no longer there.

Based on this fact, the Legal Department can’t confirm that these are openly licensed. As some commentators pointed out above, the attribution of the CC-license could have been a mistake, and not a deliberate choice to freely license these videos. LRGoncalves-WMF (talk) 18:57, 30 January 2024 (UTC)

LRGoncalves-WMF, thanks for the update! I guess replying would've meant acknowledging their mistake. At least they took action.
Could you please mail Disney Channel Israel as well? — Alexis Jazz (talk or ping me) 21:45, 30 January 2024 (UTC)

Disney Channel Israel has removed the CC license from its videos as well; however, the licenses on Disney Junior Israel's videos are still there. JohnCWiesenthal (talk) 16:36, 7 February 2024 (UTC)

Hi all, I just wanted to follow-up on this thread. Wikimedia Foundation's legal department contacted Disney's legal team as well and made them aware of the CC licenses that were present in their videos in Disney Channel Israel. They answered to our email confirming that the channel's content referred to is not offered under a Creative Commons license. In this sense, we just wanted to reaffirm the position that the CC-license attribution on their part is likely not intentional and cannot be interpreted as a free choice to license the videos. LRGoncalves-WMF (talk) 18:11, 19 February 2024 (UTC)

Did the legal department notify Disney about the CC licenses on the YouTube channels of Disney Junior Israel or Disney Romania? JohnCWiesenthal (talk) 18:29, 19 February 2024 (UTC)

How does this work with regards to the files, I mean, you cannot withdraw a CC license. (Oinkers42) (talk) 02:47, 31 January 2024 (UTC)

Yes, you can't withdraw these licenses, the files should probably not be deleted. - Sebbog13 (talk) 18:37, 20 May 2024 (UTC)

The deletion argument is not that the license was withdrawn, but that it never was valid since whoever marked it as Creative Commons didn't have the authority to do so. * Pppery * _{it has begun...} 19:44, 20 May 2024 (UTC)

Not only has the SpongeBob video's license been removed, but all CC licenses on the NickRewind channel were removed as well. However starting with Victorious Characters In School For 22 Minutes Straight 📚 on January 20, 2024, the licenses are back on the channel. I think I should also mention that the licenses on those videos by Nicktoons and NickMusic I mentioned above are still there.

We should have someone from WMF Legal speak to a Nickelodeon representative directly, because removing the licenses from the channel only to use them again does not really give us a clear message. JohnCWiesenthal (talk) 15:48, 31 January 2024 (UTC)

I suspect that they altered their stuff going back but didn't fix the root of the problem. -BRAINULATOR9 (TALK) 02:44, 8 March 2024 (UTC)